Issue Briefs

In overturning parts of recent executive orders on federal personnel issues, a federal court found that those provisions would violate the role that Congress explicitly gave federal unions in a portion of the Civil Service Reform Act called the Federal Service Labor-Management Relations Statute. Following is the court’s overview of that issue.

The FSLMRS expressly enshrines the right of federal employees to bargain collectively with respect to their working conditions. See BATF, 464 U.S. at 107. Lest there be any doubt about the reverence that Congress appears to have had for labor organizations and collective bargaining at the time the FSLMRS was enacted, the statute opens with Congress’s unequivocal finding that

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(1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them—

(A) safeguards the public interest,
(B) contributes to the effective conduct of public business, and
(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment[.]

5 U.S.C. § 7101(a)(1). What this means is that existing, binding federal law fully endorses labor organizations and collective bargaining in the federal civil service; in fact, even after Congress acknowledges that “the public interest demands the highest standards of employee performance . . . and the efficient accomplishment of the operations of Government,” id. § 7101(a)(2), it makes the additional, unqualified proclamation that “labor organizations and collective bargaining in the civil service are in the public interest[,]” id. § 7101(a).

The plain text of the FSLMRS also dispels all myths about that statute’s purposes: “to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government.” Id. § 7101(b). Thus the statute’s various provisions delineating “[e]mployees’ rights,” id. § 7102, “[m]anagement rights,” id. § 7106, “[n]ational [c]onsultation [r]ights,” id. § 7113, and “[r]epresentation rights and duties,” id. § 7114, as well as those proscribing “unfair labor practices,” id. § 7116, and imposing a specific duty to bargain in “good faith,” id. § 7117, clearly provide the baseline framework for the establishment of the type of “effective” and “efficient” federal sector labor-management relationship that the FSLMRS envisions. See 5 U.S.C. § 7101(b) (“The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”).12 In the instant case, the Unions claim that certain directives in President Trump’s recent Orders so undermine the core protections for federal laborers that FSLMRS says “safeguard[] the public interest,” id. § 7101(a)(1), and are so at odds with the requirements that Congress has specifically prescribed “to facilitate and improve employee performance and the efficient accomplishment of the operations of Government,” id. § 7101(a)(2), that the resulting right to collective bargaining has been rendered virtually unrecognizable. (See, e.g., NTEU’s Mem. at 37; NTEU’s Reply at 37; Hr’g Tr. at 115:14–22.) When the text of the challenged executive order provisions are considered in light of existing law that delineates the scope of the right to bargain collectively and the duty of management to bargain in good faith, this Court agrees that many of the challenged Order provisions impermissibly infringe upon the right to good-faith bargaining that the FSLMRS establishes.

Section 7103(a) And D.C. Circuit Caselaw Define The Contours Of The Statutory Right To Bargain Collectively

The FSLMRS not only preserves the statutory right of federal employees to “collective bargaining,” but also (quite helpfully) expressly defines that term. In relevant part, the definitions section (5 U.S.C. § 7103) states:

“collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]5 U.S.C. § 7103(a)(12) (emphasis added). Much of the remainder of the statute is devoted to specifying the circumstances under which the prescribed good-faith negotiations over “the personnel policies, practices, and matters . . . affecting working conditions[,]” id. at § 7103(a)(14) (defining “conditions of employment”) must, might, or won’t occur. See id. §§ 7103(a)(12), 7106, 7117. The FSLMRS also creates an independent agency to resolve certain foreseeable future disputes regarding particular negotiations and to develop the specific policies that necessarily will be required to shore up collective bargaining rights, id. §§ 7104, 7105.

But the primary mandate is clear: in contrast to workplace scenarios in which rules and requirements can be unilaterally imposed upon workers by the management, under the FSLMRS, labor representatives and agency managers are obliged “to consult and bargain” regarding the conditions of employment, and to proceed in “good faith” during any such collective bargaining negotiations. Id. § 7103(a)(12). In other words, boiled to bare essence, the right of collective bargaining that the FSLMRS protects is the right of federal workers to have a say with respect to the terms and conditions under which they will be working. See Overseas Educ. Ass’n, Inc. v. Fed. Labor Relations Auth., 876 F.2d 960, 971 (D.C. Cir. 1989) (stating that a “collective bargaining measure . . . allows [] employees to combine their views and their voices in a concerted responsive effort”); cf. Nat’l Labor Relations Bd. v. Am. Ins. Co., 343 U.S. 395, 401–02 (1952) (“The National Labor Relations Act is designed to promote industrial peace by encouraging the making of voluntary agreements governing relations between unions and employers.”).
Notably, the D.C. Circuit has determined that there are certain “core element[s]” of the protected right to bargain collectively under the FSLMRS—i.e., certain aspects of that right that are so fundamental to its exercise that efforts to interfere with them qualify as violations of the FSLMRS. See Chertoff, 452 F.3d at 861. Two of these core elements are relevant to this Court’s analysis of the Orders the Unions have challenged in the instant case: (1) the duty to “bargain[,]” and (2) the duty to negotiate “in good faith[.]” 5 U.S.C. § 7103(a)(12). An understanding of the scope and nature of these obligations is essential for comprehending this Court’s ultimate conclusions.

a. The Duty To Bargain

The text of the FSLMRS plainly establishes a three-tier approach that delineates the boundaries of the parties’ statutory duty “to bargain” about working conditions in the federal civil service. To begin, there is a presumptive requirement that federal agencies and labor unions must bargain over any “condition of employment[,]” meaning any “personnel policies, practices, and matters” that affect agency employees. 5 U.S.C. § 7103(a)(12), (14); see also Nat’l Treasury Emps. Union, 414 F.3d at 52 (“[T]he Statute generally obligates an agency to negotiate with its employees’ bargaining representative over ‘conditions of employment[.]’” (citation omitted)). These are “mandatory” subjects of negotiation. U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439.

The FSLMRS also identifies certain other matters that courts have deemed “permissive”—i.e., matters that an agency may bargain over “at [its] election[.]” 5 U.S.C. § 7106(b)(1); see also Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., 453 F.3d 506, 508 (D.C. Cir. 2006). Per the statute, the parties might negotiate over the “numbers, types, and grades of employees” or the “technology, methods, and means of performing work[,]” and if the agency agrees, they can strike a bargain regarding these matters. 5 U.S.C. § 7106(b)(1). Thus, federal agencies and unions are free to approach each other and discuss the prospect of bargaining over such matters, and must engage in a good-faith discussion on this front, but “neither party may lawfully insist upon agreement on such issues as a condition to a labor agreement.” U.S. Dep’t of the Interior, Bureau of Reclamation v. Fed. Labor Relations Auth., 23 F.3d 518, 521 (D.C. Cir. 1994).

Third, and finally, the statute specifically “places a number of substantive topics off limits for bargaining[,]” including the “management rights” contained in section 7106(a) of Title 5 of the United States Code, Chertoff, 452 F.3d at 863; see also 5 U.S.C. § 7106(a), as well as the subject matter of “any Federal law or any Government-wide rule or regulation[,]” 5 U.S.C. § 7117(a)(1); see also U.S. Dep’t of the Air Force, 952 F.2d at 448 (“[A] federal agency may not negotiate over proposed conditions of employment that are inconsistent with any Federal law or Government-wide rule or regulation.” (internal quotation marks and citation omitted)).

What this three-tier structure means is that the scope of collective bargaining between federal agencies and unions under the FSLMRS encompasses the negotiation of all mandatory subjects (i.e., all conditions of employment not excluded or excludable under sections 7106 or 7117), as well as discussions regarding the prospect of negotiating any of the permissive bargaining matters laid out in section 7106(b)(1) (i.e., matters over which the agency can opt to reach an agreement). See U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439 (“Inherent in both the NLRA and the FSLMRS is a fundamental rule that the parties to a bargaining relationship are [] required to negotiate over “mandatory” subjects of bargaining.”); U.S. Dep’t of the Treasury, Internal Revenue Serv., Office of Chief Counsel, Wash. D.C. v. Fed. Labor Relations Auth., 739 F.3d 13, 19 (D.C. Cir. 2014) (“[S]ection 7106(b)(1) expressly identifies certain matters that although interfering with section 7106(a) management rights, may nonetheless be negotiated at the election of the agency[.]” (internal quotation marks and citation omitted)). With respect to these delineated matters, Congress has provided no choice: federal workers’ right to collective bargaining requires agency management to either actually discuss certain topics or be open to discussing them. But as the D.C. Circuit has recognized, in the overall scheme of things, the scope of protected bargaining rights that the FSLMRS mandates with respect to federal labor relations is relatively narrow. See Chertoff, 452 F.3d at 861. That is, the FSLMRS “excludes from negotiations a host of subjects that employers would be obliged to bargain about in the private sector.” Id. (internal quotation marks and citations omitted). As explained above, Congress appears to have done this in deference to “the special requirements and needs of the government[.]” Id.; see also id. at 863 (explaining that Congress struck a delicate balance, by creating a collective bargaining system whose “parameters . . . under the FSLMRS are narrow and flexible”).

b. The Duty To Act In Good Faith

The FSLMRS also expressly requires both labor unions and agencies to negotiate “in good faith” during collective bargaining negotiations. See, e.g., 5 U.S.C. §§ 7103(a)(12), 7114(b). The duty to bargain in good faith plays a central role in the FSLMRS’s scheme, because an agency’s “unwillingness to discuss the issues with an open mind, and to engage in a ‘give and take’ relationship foreclose[s] any possibility of meaningful collective bargaining.” Fed. Aviation Admin. Nw. Mountain Region Seattle, WA, 14 F.L.R.A. 644, 672 (1984); see also Archibald Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1412–13 (1958) (“The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition.”).

To satisfy this duty, agencies and unions have a clear statutory obligation: to “approach [] negotiations with a sincere resolve to reach a collective bargaining agreement”; to “be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment”; and to “meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[.]” 5 U.S.C. § 7114(b)(1)–(2). In addition, the parties must “participate actively in the deliberations so as to indicate a present intention to find a basis for agreement”; maintain “an open mind”; and make “a sincere effort . . . to reach [] common ground.” Amalgamated Transit Union Int’l AFL–CIO v. Donovan, 767 F.2d 939, 949 (D.C. Cir. 1985); Turegon v. Fed. Labor Relations Auth., 677 F.2d 937, 939–40 (D.C. Cir. 1982) (“[I]t is appropriate . . . to consider precedent developed under the NLRA in interpreting the [FSLMRS].”). Hence, when appraising whether a union or agency has acted in bad faith, the FLRA and the courts pay particular attention to whether there has been an “attempt to evade or frustrate the bargaining responsibility[.]” Division of Military & Naval Affairs, State of New York, 7 F.L.R.A. 321, 338 (1981).

c. Takeaways Regarding Agency Conduct With Respect To Federal Labor Negotiations

The FSLMRS’s unequivocal duties to (a) “bargain” and (b) negotiate “in good faith” compel the conclusion that Congress intended to regulate agency conduct with respect to federal labor negotiations, and these statutory criteria clearly impact federal agencies in at least two ways. First, in order to preserve federal workers’ statutory right to “bargain,” an agency must be cautious about taking matters off the negotiating table in its collective bargaining discussions. See, e.g., U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439. Second, in order to fulfill the obligation to bargain “in good faith,” agency representatives must keep an open mind and exhibit flexibility in the give-and-take process that good-faith negotiation requires. See Amalgamated Transit Union Int’l AFL–CIO, 767 F.2d at 949. In other words, because Congress has specifically determined the scope of the right to collective bargaining in the federal civil service, (i.e., what matters can, must, and need not be negotiated), as well as the required nature of any such negotiations (i.e., a sincere attempt to reach agreement), in order to act consistently with that statute, agency management must not remove covered matters from the bargaining table indiscriminately, and must proceed to collective bargaining discussions ready to listen and consider what the workers are proposing, with an open mind and with every intention of coming to a mutually acceptable result.
In regard to what agencies can and cannot do, National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006), is instructive. In that case, OPM and the Department of Homeland Security (“DHS”) attempted to implement a provision of the Homeland Security Act that authorized them to create the DHS human resources system, but the final regulations that DHS issued drastically reduced the matters that were subject to collective bargaining such that, in essence, only those “that might be seen as personal employee grievances” remained. Id. at 848. The new policy also authorized DHS to take additional matters off the bargaining table in the future. Id.

Several unions filed a lawsuit, complaining that, among other things, OPM and DHS’s regulation “impermissibly restricted the scope of bargaining.” Id. at 851. And, the D.C. Circuit held that, because the agencies had impermissibly diminished the already narrow “scope of bargaining” under the Homeland Security Act (which mimics the scope of bargaining under the FSLMRS, see id. at 858, 863), the agencies’ actions had violated the right to bargain collectively, see id. at 861.

As far as agency management’s obligation to respect employees’ right to bargain goes, Chertoff provides at least three relevant lessons. First, it establishes that the linchpin of identifying agency conduct that impermissibly undermines the right to bargain is whether the agency’s actions strike at the “core elements[s]” of collective bargaining as defined by statute. (See Part IV.D.1(a), (b), supra.) Chertoff, 452 F.3d at 861. Second, with respect to the scope of bargaining under the FSLMRS, an agency’s reduction of the matters that would otherwise be subject to negotiation between agencies and federal employees (i.e., taking matters off the table) can deprive the employees and their union representatives of the right to bargain collectively, and can thereby violate the statute. Chertoff, 452 F.3d at 844, 861–62. Even without imposing limitations that specifically and directly conflict with individual statutory prescriptions, there can come a point at which an agency (or in this case the President) diminishes the scope of bargaining such that the only acceptable conclusion is that the agency’s conduct violates the FSLMRS’s requirement that the parties “bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees[,]” 5 U.S.C. § 7103(a)(12). Third, an attempt to limit the negotiability of the areas of bargaining that the FSLMRS deems permissive (i.e., those over which the agency has discretion to bargain under section 7106(b)(1)) is not merely an innocuous exercise of management prerogatives; rather, it eviscerates the statutory right of employees to have an opportunity to discuss certain matters, and also seemingly sheds light on the agency’s motivations for slashing otherwise potentially negotiable topics, and as such, is cause for great concern. See Chertoff, 452 F.3d at 862 (calling the fact that the agency had removed the “permissive” areas of bargaining from the scope of bargaining “critical” with respect to a determination of whether the scope of bargaining was impermissibly reduced).

Not surprisingly, Defendants read Chertoff differently. They argue, for example, that the hallmark of an impermissible reduction in the scope of bargaining under Chertoff is not whether the agency has acted to remove from the collective bargaining table topics that Congress has specifically identified as negotiable, but whether what is left on the table is sufficient to constitute collective bargaining within the meaning of statute. (See, e.g., Defs.’ Mem. at 73 (“[T]he HR system struck down by the D.C. Circuit in Chertoff bears no resemblance to the collective bargaining regime that continues to exist under the President’s Executive Orders.”); see also Defs.’ Reply at 24 (quoting Chertoff to suggest that an egregious near-total diminution of bargaining is necessary, based on the D.C. Circuit’s observation that the challenged act before it had “reduced the scope of bargaining . . . to ‘virtually nil’” (citation omitted)).) But Chertoff’s analysis does not demand this result. To be sure, in that case the D.C. Circuit evaluated what appears to have been a near total abrogation of the collective bargaining right, but that says nothing about whether a less egregious affront can suffice to impair the right to bargain in violation of the FSLMRS. With respect to that key question, Chertoff established (and this Court concludes) that “the norms of ‘collective bargaining’” matter, 452 F.3d at 861, and that agency efforts to remove from the bargaining table otherwise negotiable topics of discussion arbitrarily and in a manner that impacts a unions’ ability to engage in effective collective bargaining negotiations moving forward impermissibly jeopardizes the right to bargain that the FSLMRS assiduously protects, id. at 487 (concluding “the scope of bargaining” rights under federal law “must be guided by the federal labor policy underlying the permissible scope of bargaining in the federal sector[,]” and that the “general framework” that Congress has laid out “to ensure collective bargaining” for federal employees “must be followed”).
One final takeaway bears mentioning: we have learned from the FLRA that an executive branch official can be found to have “instruct[ed]” agency negotiators in a manner that “preclude[s] the existence of the prerequisite good faith necessary under the” FSLMRS. Fed. Aviation Admin. Nw. Mountain Region Seattle, WA, 14 F.L.R.A. at 672. This occurs most obviously when the instruction prevents the negotiator from “approach[ing] the Union with [an] open mind[.]” Id. In other words, commands that are likely to cause agency representatives to pursue a certain outcome with such dogged determination that the agency negotiator effectively “come[s] to the bargaining table with a closed mind[,]” impinge upon the duty to act in good faith. Sign & Pictorial Union Local 1175, 419 F.2d at 731; compare Teamsters Local Union No. 515 v. Nat’l Labor Relations Bd., 906 F.2d 719, 726 (D.C. Cir. 1990) (emphasizing that “rigid adherence to disadvantageous proposals may provide a basis for inferring bad faith” (internal citation and quotation marks omitted)) with Fed. Aviation Admin. Nw.

Mountain Region Seattle, WA, 14 F.L.R.A. at 672 (associating a flexible process of “give and take” with the obligation to proceed in “good faith”).

 

Certain Provisions Of The Challenged Executive Orders Dramatically Curtail The Scope Of Bargaining Because Agencies And Unions Will No Longer Negotiate Over A Host Of Significant Issues
With the above framework in mind, it is clear to this Court that various aspects of the Orders that the Unions seek to challenge in this case violate the statutorily protected duty to bargain. This violation is most easily perceived as an illegitimate attempt to take four categories of otherwise negotiable matters off the bargaining table: (1) all of the permissive subjects of bargaining that Congress has listed in section 7106(b)(1) of Title 5 of the United States Code; (2) the ways in which union members can receive and use official time (which the FSLMRS addresses in section 7131(d)); (3) the agency’s procedures for handling matters relating to inadequate employee performance, performance evaluations, and performance-based bonuses (which is covered in the statute, at sections 7103(a)(12) and 7121); and (4) the methods for conducting collective bargaining in the first place (which are designated by Congress as a topic for negotiation under section 7114(a)(4)).

a. The Orders Remove These Matters From The Scope Of The Right To Bargain Despite The Fact That Congress Has Made Them Negotiable

To be more specific, with respect to each of these bargaining categories, the challenged executive orders dictate the following. Section 6 of the Collective Bargaining Procedures Order states that agencies “may not negotiate over the substance of the subjects set forth in section 7106(b)(1) of [T]itle 5”— period. Exec. Order No. 13,836 § 6. This means that unions and agencies will no longer engage in negotiations over such topics as “the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty” and “the technology, methods, and means of performing work”—matters that Congress specifically designated as subject to negotiation “at the election of the agency” in section 7106(b)(1). 5 U.S.C. § 7106(b)(1).

Even more dramatically, the Official Time Order completely reconceptualizes the terms and scope of bargaining regarding the right of employees to engage in union business during their paid working hours—a topic that the FSLMRS specifically covers. See Exec. Order No. 13,837. Subsections (a) and (c) of section 7131 of the FSLMRS provide a list of certain activities for which a federal agency must grant “official time” to labor representatives, 5 U.S.C. § 7131(a) (negotiation of a collective bargaining agreement); id. § 7131(c) (participation of proceedings before the FLRA, if that agency authorizes it), while section 7131(b) provides Congress’s directive that, with respect to activities “relat[ed] to the internal business of a labor organization[,]” official time cannot be used, id. § 7131(b). For everything else, section 7131(d) states that federal employees “shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.” Id.; see also BATF, 464 U.S. at 99 (defining “official time” as the right of employees to receive their “usual pay” during union-related matters). Yet certain challenged provisions in the Official Time Order expressly limit the negotiations over the matters for which official time can be utilized: e.g., the Order flatly prohibits the use of official time to lobby government officials, or to prepare grievances on behalf of the union or other union members. See Exec. Order No. 13,837 §§ 4(a)(i), 4(a)(v). Similarly, the Official Time Order instructs agencies that they cannot provide union members with federal resources or support relating to activities performed on official time, see id. §§ 4(a)(iii)–(iv)—effectively making those matters, too, non-negotiable—and it restricts bargaining over the conduct of union employees with respect to the use of official time as well, because whatever collective bargaining negotiators might have been able to agree to about the amount of official time labor representatives can utilize while engaged in union business, the order mandates that official time cannot comprise more than twenty-five percent of a union employee’s working hours, see id. § 4(a)(ii), and management approval must be obtained before any official time can be used at all, see id. §§ 4(b).

By restricting negotiation over the procedures that an agency uses to evaluate employee performance, the Removal Procedures Order takes a similar tack. See Exec. Order No. 13,839. For example, section 4(a) explicitly prohibits agencies from subjecting disputes about assignment ratings (i.e., performance evaluations) or performance-based monetary awards to any “grievance procedures or binding arbitration[,]” id. § 4(a), no matter what the agency and labor organization might have been able to agree to with respect to how such disputes should be handled. Compare 5 U.S.C. § 7121(a)(1) and (2) (providing that “any collective bargaining agreement shall provide procedures for the settlement of grievances[,]” and suggesting that all related grievance matters are negotiable, because “any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement”). Section 4(c) of Executive Order 13,839 removes from the bargaining process and commits to the sole discretion of agency management how long an employee should have to improve their performance before being terminated once their employer has deemed their performance unacceptable within the meaning of section 4302(c)(6) of Title 5 in the United States Code, see Exec. Order No. 13,839 § 4(c), despite the fact that section 4302(c)(6) and the relevant regulations in this regard do not set any definite limit on the length that employees have to improve their performance, see 5 U.S.C. § 4302(c)(6).13

Courts and the FLRA have decided that each of the matters discussed above falls within the scope of the right to bargain that Congress sought to protect when it enacted the FSLMRS. See BATF, 464 U.S. at 107 n.17 (financial support to union members is negotiable during collective bargaining); Dep’t of the Air Force Eglin Air Force Base, Fla., 2016 WL 3548040, at *13 (May 31, 2016) (a party is free “to advocate for what it believes to be the proper amount of official time”); U.S. Dep’t of the Treasury, Internal Revenue Serv., Wash. D.C., 56 F.L.R.A. 393, 395 (2000) (“[M]atters covered under section 7106(b)(1) are negotiable only at the election of the agency.”); Am. Fed’n of Gov’t Emps. Nat’l Council of Field Labor Locals, 39 F.L.R.A. 546, 553 (1991) (how official time may be used is open to negotiation); Patent Office Prof’l Ass’n, 29 F.L.R.A. 1389, 1403 (1987) (the amount of recovery time to be provided before performance-based action is negotiable); Vt. Air Nat’l Guard, Burlington, Vt., 9 F.L.R.A. 737, 740–41 (1982) (the scope of grievance procedures is negotiable); see also 5 U.S.C. § 7114(a)(4) (unions and agencies “may determine appropriate techniques, consistent with the provisions of section 7119 of [the FSLRMS], to assist in any negotiation”). However, as indicated above, the Orders that the Unions challenge here selectively remove these nine matters from the array of topics that Congress has placed on the bargaining table in the FSLMRS, ostensibly to promote an expansive conception of what Congress intended when it recognized the public’s interest in “the effective functioning of the executive branch.” Exec. Order No. 13,837 (preamble); Exec. Order No. 13,839 (preamble); see also Exec. Order No. 13,836 (preamble); cf. Chertoff, 452 F.3d at 861–62 (concluding that the removal of just six matters illegally diminished the scope of bargaining anticipated in the statute).14 This Court has little doubt that this shifting of discussion topics from the “must” or “may” negotiate buckets that Congress created and into the non-negotiable bucket reduces the scope of the protected right to bargain in an impermissible manner. See Chertoff, 452 F.3d at 861.